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Canada: Support Canadian women's struggle against Shari'a Courts

WLUML asks you URGENTLY to send letters of support to Canadian women’s organisations, in particular organisations of women whose families come from Muslim societies, in their struggle to resist the introduction of so-called ‘Shari’a Courts’ in the resolution of family matters in Canada.

Resistance to this gender discriminatory move is growing rapidly but Canadian women’s groups continue to need support from women’s and progressive human rights activists abroad to ensure that this disastrous ‘experiment’ is not extended by the Canadian government.

As many of us have experienced, once a regressive measure is introduced and justified with reference to religion and culture, it becomes extremely difficult for women and other disadvantaged groups to reverse the process.

We are also painfully aware that regressive measures in one context lead to the narrowing of options for alternative voices in other contexts.

Several meetings and conferences are taking place in Canada on the issue in April and May. This is a major opportunity to strengthen the visibility of women’s resistance to the political manipulation of culture and identity.

We therefore urge you to respond to this ALERT FOR ACTION immediately and actively demonstrate your solidarity with Canadian women’s groups.

The developments in Canada are part of a wider pattern increasingly visible over the past couple of years whereby extreme right politico-religious Muslim groups have sought to gain influence in Europe and the Americas.

Consistently resisted by women’s and progressive human rights activists in developing contexts, fundamentalists have turned their attention to contexts where it is easier to politically exploit claims to defend culture and identity. Governments pursuing policies of multiculturalism, and trends of cultural relativism affecting parts of the human rights movement and the Left in Europe and the Americas have facilitated this exploitation.

In early 2004, the self-styled the Islamic Institute of Civil Justice announced it was planning to use Ontario Province’s 1991 Arbitration Act to settle disputes within the Muslim community. ‘Shari’a Councils’ were to be set up to apply a form of Shari’a law.

More than half of Canada’s 600,000 Muslims live in Ontario Province and would be affected if the move went ahead.

Many Canadian women’s groups, particularly from migrant communities, immediately protested. The Canadian authorities, however, responded that, under the country’s multiculturalist policy, other religious communities already accessed the Arbitration Act for similar purposes. Meanwhile other Canadian women’s groups and human rights groups either supported the move on the grounds of ‘difference’ and ‘diversity’ or were afraid to support women’s groups who resisted the move for fear of being labelled ‘racist’.

Following continued protests by women, the Canadian government ordered a review of the application of the Arbitration Act by the former Attorney-General Marion Boyd. Despite representations by women’s groups documenting the existing problems with application of the Act and warning of the likely negative impact on women’s rights, the Boyd Report released on 20 December 2004 endorsed the use of the Act in the resolution of family disputes for religious communities.

In effect, a two-tier system of laws could be introduced if this experiment is now applied and widened beyond Ontario. Most vulnerable will be refugees and immigrants who do not speak either official language - French or English - who are unaware of the Canadian Charter of Rights and Freedoms and who are most likely to be coerced by family and community pressure to submit to ‘Shari’a’ arbitration - like it or not.

Statements by Canadian women’s groups

a) Canadian Council of Muslim Women, Press Release, ‘Tribunals Will Marginalize Canadian Muslim Women and Increase Privatization of Family Law’, Toronto, 15 September 15 2004

The Canadian Council of Muslim Women (CCMW) recommends that family matters are best settled under Canadian and Ontario family law statutes and regulations. Separate arbitration tribunals to settle family matters under Shari’a/Muslim family law will ghettoize and further marginalize vulnerable women.

Concerns about the establishment of Shari’a/Muslim family law arbitration tribunals prompted CCMW to commission two separate studies:

Applicability of Shari’a/Muslim Law in Western Liberal States, to determine how other jurisdictions with significant Muslim immigrant populations are dealing with the issue.

Family Arbitration Using Shari’a Law: Examining Ontario’s Arbitration Act and Its Impact on Women, commissioned jointly by the CCMW, the National Association of Women and the Law (NAWL) and the National Organization of Immigrant and Visible Minority Women (NOIVMW).

Results of the two studies were presented to Marion Boyd on Saturday, September 11, 2004. This was CCMW’s second meeting with Ms. Boyd, who was appointed by Ontario Premier Dalton McGuinty to review the 1991 Arbitration Act when several women’s organizations and many concerned Muslims and non-Muslims raised concerns about the establishment of Shari’a tribunals in Ontario. Such tribunals are permissible under the Arbitration Act.

The first study examined the application of Shari’a/Muslim family law in France, Germany and Britain. “In Britain, the proposal to establish a separate system of Muslim family law was rejected in order to uphold universally accepted human rights values, especially in relation to women,” the study concluded.

“What is apparent is that Canadian Muslim women risk being ghettoized and their equality rights seriously violated in a country that is known in the world for its commitment to human rights,” said Pascale Fournier, the author of the study, who has studied the application of Shari’a in several predominantly Muslim countries, as well as in Europe and North America. “All eyes are on Canada to see what we do here.”

The study on the Arbitration Act pinpoints several areas of concern for the CCMW with respect to arbitration and the application of Shari’a/Muslim family law as a means of settling family disputes:

There is no requirement to keep a record of arbitral awards; therefore there is no way to determine fairness to both parties.

Filing an arbitration order with a court is neither mandatory nor does it represent court oversight of an arbitral award.

Proponents of the Shari’a tribunals say that the Canadian Charter of Rights and Freedoms will protect women’s equality rights. The Charter applies only to state actions and not disputes between private individuals such as the arbitration agreements or awards.

Proponents have also made statements that custody/access or child support matters will not be arbitrable. However, there is no legal impediment to using the Arbitration Act in such matters therefore there are no guarantees that arbitration will not be applied in these matters.

There are no requirements for the arbitrators to be trained or educated in Canadian laws or Shari’a.

Parties who choose the arbitration route are not eligible to receive legal representation through Legal Aid Ontario.

While arbitration requires consent of both parties and is voluntary, women may feel compelled to go to a Shari’a tribunal by virtue of their strong religious affiliation and family and community pressures.

While the right of appeal exists under the Arbitration Act, the courts afford a high degree of deference to the arbitrator’s decision, particularly where an arbitrator can claim a highly specialized expertise, such as religious knowledge and experience in interpreting religious texts.

Shari’a law is not a homogeneous civil code but rather a very complex system of Muslim jurisprudence interpreted by culturally and ethnically diverse individuals often from a patriarchal perspective. There are no norms or standards for settlements, e.g. amount or length of alimony and support payments, age of male or female children for custody awards. It is precisely the arbitrariness o f these awards that will jeopardize the equality rights of Muslim women. CCMW fears that arbitration using Shari’a/Muslim family law will continue to be based on a very narrow, conservative interpretation of Islam, which has already had a negative impact on some Canadian Muslim women and Muslim women world-wide.

“We are very concerned that Muslim women will see their equality rights eroded,” said Razia Jaffer, CCMW’s National President. “Canadian women have fought long and hard to win the rights that we now enjoy.”

There are indications that various options are being considered to address concerns regarding the Arbitration Act. If these options include formal education and training, greater accountability for the arbitrators, and increased education for Muslim women on their rights with respect to Canadian family law, CCMW believes that such solutions, while well-meaning, will add more bureaucracy, complexity and expense to an already over-burdened legal system and in the end will further privatize family law. The Council is advocating that family matters be exempt from the Arbitration Act as is the case in Québec, where they are considered to be a matter of public order.

“We believe that family matters are in the public interest and therefore we do not support family disputes being settled in private spaces,” Razia Jaffer said. “Our preference is to see family matters being settled through existing family laws and the justice system being sensitized to the needs and aspirations of Canadian Muslim women.”

Canadian Council of Muslim Women is a pro-faith organization committed to equity, equality and empowerment of Canadian Muslim women.

b) ‘Family Arbitration Using Shari’a Law: Examining Ontario's Arbitration Act and its Impact on Women’, Natasha Bakht, for the National Association of Women and the Law, The Canadian Council of Muslim Women, National Organization of Immigrant & Visible Minority Women of Canadahttp://www.nawl.ca/brief-Shari’a.html

c) From all the organizations to all the MPP’S January 12, 2005, The International campaign against Shari’a Court in Canada
http://noSharia.com/

On December 20th, Ms. Marion Boyd released her report concerning the use of the Arbitration Act of Ontario, 1991 to settle family legal matters based on religious laws. We trust during this adjournment, you will take the time to read this important report in its entirety.

Over the past year hundreds of activists have informed Ms. Boyd and the general public about the past failures and future risks of permitting religious groups to continue to settle family legal matters based on religious laws.
We oppose the current two-tier legal system of secular and religious courts; where religious tribunals make binding rulings on family legal matters based on formal and informal religious laws, codes and values.

We, the undersigned collectively believe in a secular court and "one law for all," and recommend that all family legal matters be removed from the Arbitration Act of Ontario, 1991. We also believe that all family legal matters should be administered by a secular Family Court, subject to the Family Law Act of Ontario.

We trust that when you have finished reading this report, we can add your name to the growing list of supporters (over 9000 to date) who want to ensure that all Ontarians are subject to one law, for the strength of a nation is its people, people that are governed by one law.

Homa Arjomand, Coordinator of The International campaign against Shari’a Court in Canada
Email: homawpi@rogers.com